On Jan. 23, Roe v. Wade celebrated its 35th anniversary. No Supreme Court case in recent memory has been as controversial. In light of that fact, it is worth exploring how the court came to decide that the Constitution provides an unlimited right to an abortion.
Roe v. Wade was the culmination of nearly half a century of Supreme Court jurisprudence, embracing an ever-expanding litany of enumerated and unenumerated constitutional rights. The judicial reasoning behind Roe was based largely on recently decided cases that had established a "right to privacy," such as Eisenstadt v. Baird (1972) and Griswold v. Connecticut (1965).
In 1972, Jane Roe, a pregnant single woman, brought suit alleging that the Texas statutes concerning abortion were unconstitutionally vague and that they abridged her right to privacy, as established in Griswold and Eisenstadt. Roe used Justice Douglas's formulation in Griswold that the "Bill of Rights have penumbras" protected by the First, Fourth, Fifth, Ninth, and 14th Amendments, which "create zones of privacy." Roe purported to sue "on behalf of herself and all other women" similarly situated.
Roe v. Wade held that most state laws restricting a women's capacity to have an abortion violated a constitutional right to privacy under the Due Process Clause of the 14th Amendment. The Burger Court held that because abortion was a fundamental right under the Constitution, all laws attempting to restrict it must be held to the standard of "strict scrutiny." Therefore, the Court said, abortions are permissible for any reason a woman chooses, up until the "point at which the fetus becomes 'viable,' that is, potentially able to live outside the mother's womb, albeit with artificial aid. Viability is usually placed at about seven months [28 weeks] but may occur earlier, even at 24 weeks."
The apparent arbitrariness of the court's decision as to when an abortion constituted a fundamental constitutional right and when it did not is a manifestation of judicial activism. And not all criticism of Roe v. Wade emanated from the conservatives, who are prone to bemoan the judiciary. One of the most passionate criticisms of the decision came from John Hart Ely, a law professor at Yale, who wrote a scathing critique of Roe in a essay titled, "The Wages of Crying Wolf: A Comment on Roe v. Wade."
Ely says, "The argument that fetuses lack constitutional rights is simply irrelevant. For it has never been held or even asserted that the state interest needed to justify forcing a person to refrain from an activity, whether or not that activity is constitutionally protected, must implicate either the life or the constitutional rights of another person. Dogs are not 'persons in the whole sense' nor have they constitutional rights, but that does not mean the state cannot prohibit killing them: It does not even mean the state cannot prohibit killing them in the exercise of the First Amendment right of political protest."
Public support for abortion is at its lowest point since Roe v. Wade was handed down from the bench. According to a May 4, 2006 survey conducted by the Harris Poll, "During the 33 years since [Roe v. Wade], Harris Polls found majorities, between 52 and 65 percent of all U.S. adults, in favor of Roe v. Wade. Now, a new Harris Poll finds that Roe v. Wade is supported only by a slender 49 percent to 47 percent plurality. In other words, support and opposition are almost equal."
It is encouraging that attitudes toward abortion have shifted. What is more encouraging, however, is the understanding of Americans, both on the left and the right, that Roe v. Wade was a tragedy primarily because it usurped the power of democratically elected legislatures to decide the matter for themselves - as they had done before 1973.
Kevin Boland is a Heights staff columnist. He welcomes comments at kboland@bcheights.com.
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